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Thursday, November 19, 2015

ADV N PRADEEPKUMAR

PARA 52:“Having Examined
The Matter On Principle, Let Us
Turn To Some Precedents. In D.R.Nim
V.Union Of India, The
Appellant Questioned His
Seniority Which Was To
Be Determined In
Accordance With The
Provisions Contained In Indian
Police Service (Regulation Of
Seniority)Rules,1954.These Rules
Required First To
Ascertain The Year
Of Allotment Of The
Person Concerned For
Determination Of His
Seniority.

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In Doing So, Government Of India Directed
That Officers Promoted
To The Indian
Police Service, Should
Be Allowed The
Benefit Of Their
Continuous Officiation With
Effect Only From
May, 19, 1951.The Appellant Challenged
The Order Because, The
Period Of Officiation, From
June, 1947, To May 1951
Was Excluded For
The Purpose Of
Fixation Of His
Seniority. His Grievance Was That
There Was No
Rationale Behind Selecting
This Date. After Taking Into
Consideration, Affidavit In Opposition, This Court
Held As Under:

“It Would Be Noticed
That The Date, May, 19, 1951,
To Begin
With, Has Nothing
To Do With
The Finalisation Of
The Gradation List Of
Indian Police Service, Because, It Was A
Date, Which Had Reference
To The Finalisation
Of The Gradation List
For The IAS .Further, This Date
Does Not Seem
To Have Much
Relevance To The
Question Of Avoiding
The Anomalous Position
Mentioned IN Para 9 Of The Affidavit, Reproduced Above. This Date Was
Apparently Chosen For
The IAS, Because, On This Date, The Gradation List
For All The
Earlier Persons, Recruited
To The
Service Had Been
Finalised And Issued
In Somewhat A Stable
Stage. But, Why Should This
Date Be Applied
To The Indian
Police SERVICE Has Not
Been Adequately Explained. Mr.B.R.L.Iyengar, The Learned Counsel,
For The Appellant, Strongly Urges That Selection
Of May 19, 1951, As A Crucial
Date, For Classifying People
Is Arbitrary And Irrational. We Agree
With Him In
This Respect. It Further Appears, From The Affidavit
Of Mr.D.K.Guha, Deputy
Secretary, To The Government
Of India, Ministry Of Home
Affairs, Dated December, 19 1966,
That The Government Of India Have
Recently Decided In
Consultation With The Ministry
Of Law, That
The Ministry Of Home
Affairs Letter No.2/32/51-AIS,
Dated August 25, 1955, Will Not
Be Applicable To Those
SCS / SPS Officers, Who Were Appointed To IAS
/IPS Prior To The
Promulgation Of IAS/IPS
(Regulation Of Seniority) Rules, 1954 And The Date
Of Issue Of The
Above Letter If
Their Earlier Continuous
Officiation Was Approved
By The Ministry
Of Home Affairs
And Union Public
Service Commission. It Further
Appears, That “In The Case Of
Shri C.S.Prasad Also, An IPS
Officer Of Bihar, A Decision
Has Been Taken To
Give The Benefit
Of Full Continuous Officiation
In Senior Posts And
To Revise His Year Of
Allotment Accordingly”. But,
It Is Stated That “As
Shri Nim Was Appointed
To IPS On October, 22, 1955,
I.E., After The Promulgation Of
IPS(Regulation Of Seniority) Rules, 1954, And After
Issue Of Letter, Dated
August, 25, 1955, His Case Does
Not Fall Even Under
This Category”. The Above Statement Of
The Case Of
The Government Further
Shows That The Date,. May, 19, 1951 was An Artificial And
Arbitrary Date, Having Nothing
To Do With
The Application Of
The First And
Second Provisos To
Rule 3(3). It Appears To Us,
That Under The
Second Proviso To
Rule 3(3) , The Period Of Officiation
Of A Particular OFFICER
Has To Be
Considered And Approved Or Disapproved By The Central
Government, In Consultation With
The Commission, Considering All
The Relevant Facts. The
Central Government Can Not
Pick Out A
Date From A Hat
- And
That Is What
It Seems To Have
Done In This
Case-- And Say That A
Period Prior To
That Date Would
Not Deemed To Be
Approved By The
Central Government Within The
Second Proviso.

Para 53:”The Court Held
That The Central
Government Can Not
Pick Out A
Date From A
Hat And That
Is What It Seems To
Have To Done
In Saying That
A Period Prior To
That Date Would
Not Be Deemed
To Be Approved
By The Central
Government Within The
Second Proviso. In The Case
Before Us, The Eligibility Criteria
For Being Eligible
For The Liberalised
Pension Scheme Have Been
Picked Out From
Where It Is
Difficult To Gather And No Rationale
Is Discernible Nor One Was
Attempted At The Hearing. The Ratio
The Decision Would
Squarely Apply To The Facts
Of This Case”.

Para 54:”Similarly In
Jaila Singh V.State Of
Rajasthan, This Court Struck
Down As Discriminatory, The Division
Of Pre-1955 And Post-1955 Tenants For
The Purpose Of
Allotment Of Land
Made By The Rules
Under The Rajasthan Colonisation Act,
1954, Observing That
The Various Provisions
Indicate That The
Pre-1955 And Post-1955 Tenants Stand
On The Same
Footing And Therefore
Do Not Form
Different Classes And Hence The
Division Was Held
To Be Based
On Wholly Irrelevant Consideration. The Court Further
Observed That It
Is Difficult To
Appreciate How It
Would Make Any Difference
From The Stand Point Of View
Of Allotment Of Land,
Whether A Tenant
Has Been In
Occupation For 16
Years Or 18 Or
20 Years And
Why Differentiation Should
Be Made, With Reference
To The Date When
Rajasthan Tenancy Act
Came Into Force. This Division,
For The
Purpose Of Allotment Of
Land With Reference To
Certain Date Was
Considered Both Arbitrary
And Discriminatory On The
Ground That It Was Wholly Unrelated
To The Objects
Sought To Be
Achieved”.

Para 55: “As Against
This, The Learned Attorney
General Invited Our
Attention To Union
Of India V.Parameswari Match
Works. By A Notification, Dated
July 21, 1967, Benefit Of A Concessional Rate
Of Duty Was
Made Available If
A Manufacturer Of Matches
Made A Declaration
That The Total
Clearance Of Matches
From A Factory
Would Not Exceed 75
Million During A
Financial Year. As Framed,
The Notification Extended
The Benefit To
Manufacturers With Higher
Capacity To Avail
Of The Concessional
Rate Of Duty By
Filing A Declaration
As Visualised In
The Proviso To
The Notification By
Restricting Their Clearance
To 75 Million
Matches. This Notification Was
Amended On September
4, 1967, With A View
To Giving Bona Fide
Small Manufacturers, Whose
Total Clearance Was
Not Estimated To
Be In Excess
Of 75 Million
Matches, The Benefit Of
Concessional Rate Of
Duty Prescribed Under Notification Dated
July, 21, 1967.The Respondent
In The Case Applied
For A Licence
For Manufacturing Matches, On
September 5, 1967, That Is
A Day After
The Date On Which,
Amended Notification Was
Issued And Filed A Declaration That
The Estimated Manufacture
For The Financial
Year Would Not
Exceed 75 Million
Matches, But This
Was Rejected. In A
Writ Petition Filed
By The Respondents, The High
Court Held That
The Classification Was
Unreasonable Inasmuch As The Fixation
Of The Date For
Making A Declaration Had No
Nexus With The
Object Of The Act. In
The Appeal By The Union
Of India, This Court
Held That The
Concessional Rate Of Duty
Was Intended For
Small Bona Fide
Units Who Were
In The Field
When The Notification Dated
September 4, 1967, Was
Issued. The Concessional Rate
Of Duty Was
Not To Benefit
The Large Units
Which Had Split
Up Into Smaller
Units To Earn The
Concession. With Reference To
Selection Of The Date, This
Court Observed As
Under:(SCC P.311, Para 10):

“The Choice
Of A Date, As
A Basis For Classification,
Can Not
Always Dubbed As
Arbitrary, Even If No
Particular Reason Is
Forthcoming For The
Choice, Unless It Is Shown
To Be Capricious
Or Whimsical Under
The Circumstances. When It Is Seen
That A Line Or
A Point There
Must Be And
There IS No Mathematical
Or Logical Way
Of Fixing It
Precisely, The Decision Of
The Legislature Or
Its Delegate Must
Be Accepted Unless
We Can Say That
It Is Very
Wide Of The
Reasonable Mark”.

Para 56:”In Reaching
This Conclusion, The Court Relied
On Louisville Gas
Co.V.Albama Power Co. This Decision
Is Not An
Authority For The
Proposition, That Whenever A
Date Is Chosen, Or An
Eligibility Criteria Which
Divides A Class, The
Purpose Of The
Choice, Unrelated To The
Objects Sought To
Be Achieved Must
Be Accepted As
Valid. In Fact, It Is
Made Clear In
The Decision Itself
That Even If No Particular
Reason Is Forthcoming
For The Choice, Unless It
Is Shown To
Be Capricious Or
Whimsical, The Choice Of The
Legislature May Be
Accepted. Therefore, The Choice
Of The Date, Can
Not Be
Wholly Divorced From
The Objects Sought To Be
Achieved By The
Impugned Action. In Other
Words, If The Choice Is Shown
To Be Thoroughly
Arbitrary, And Introduces
Discrimination Violative Of
Article 14, The
Date Can Be Struck
Down. What Facts Influenced The
Court’s Decision In
That Case, For
Upholding The Choice Of The Date
Are Worth Recalling. The Court Held
That The Object
Of Granting The
Concessional Rate Of
Duty Was To
Protect The Smaller
Units In The
Industry From The
Competition By The Larger
Ones And That
Object Would Be
Frustrated, If, By Adopting
The Device Of
Fragmentation, The Larger Units Could
Become The Ultimate
Beneficiaries Of The
Bounty. This Was The
Weighty Consideration Which
Prompted The Court
To Uphold The
Date.

Para
57:”The Learned Attorney
General Then Referred To
D.C. Gouse And Co. V.State
Of Kerala.This Court, While
Repelling The Contention, That
The Choice Of April 1, 1973, As The Date
Of Imposition Of
The Building Tax,
Is Discriminatory With
Reference To Article
14 Of The Constitution, Approved The
Ratio In The
Case Of Parameswaran Match Works. Even
While Reaching This
Conclusion, The Court Observed
That It Is Not Shown How It Could
Be Said That
The Date(April 1, 1973)For The Levy
Of The Tax
Was Wide Of The
Reasonable Mark. What Appealed
To The Court
Was, That Earlier An Attempt
Was Made To
Impose The Building Tax, With
Effect From March 2, 1961
Under The Kerala
Building Tax Act,1961, But
The Act Was
Finally Struck Down
As Unconstitutional By
This Court, As
Per Its Decision
Dated August, 13, 1968.While Delivering
The Budget Speech, At
The Time Of
Introduction Of 1970-71
Budget, The Intention
To Introduce A
Fresh Bill For
Levy Of The Tax
Was Made Clear. The Bill Was
Published In June, 1973, In Which
It Was Made
Clear That The
Act Would Be
Brought Into Force From
April 1, 1970.After Recalling
The Various Stages
Through Which The
Bill Was Passed,
Before Being Enacted
As An Act, This
COURT Held That The
Choice Of Date, April
1, 1973, Was Not
Wide Of The
Reasonable Mark. The Decision
Proceeds On The Facts
Of The Case. But, The
Principle That When A Certain
Date Or Eligibility
Criteria Is Selected With
Reference To Legislative Or Executive
Measure, Which Has The
Pernicious Tendency Of Dividing
An Otherwise Homogeneous
Class And The
Choice Of Beneficiaries Of
The Legislative / Executive
Action Becomes Selective, The Division
Or Classification Made
By Choice Of
Date, Or Eligibility Criteria
Must Have Some
Relation To The Objects
Sought To Be Achieved. And Apart From
The First Test, That
The Division Must
Be Referable To
Some Rational Principle, If The
Choice Of The
Date Or Classification Is Wholly Unrelated To
The Objects Sought To
Be Achieved, It Can
Not Be Upheld
On The Specious Plea, That
That Was The
Choice Of The Legislature.